Volume 18 — Arizona Reports

<p>■1. Municipal Corporations — Legislative Control. — The powers of all municipal corporations exist 'only by authority of the state, and, subject to constitutional limitations, the legislature may erect, change, divide and abolish such corporations at pleasure.</p> <p>2. Municipal Corporations — Annexation of Part of Another Municipality — Effect.—Where an incorporated city, acting under Civil Code of 1901, paragraphs 509-517, authorizing such cities to extend, enlarge, and increase their corporate limits, annexed part of a road district, the city corporation acquired the right to exercise over the property and inhabitants of the annexed part of the district the political and governmental powers delegated to it •by law.</p> <p>3. Municipal Corporations — Bonds—Right to Issue. — The right of such a municipality to issue bonds is not political or governmental, •but a private, corporate power conferred for local purposes, in the exercise of which function the municipality acts as a private corporation whose obligations are secured by all constitutional guaranties.</p> <p>4. Municipal Corporations — Annexation to Another Municipality— Rights and Liabilities of Annexing City. — A city, by the annexation of a road district under authority of statute, acquired no rights and assumed no liabilities of the district not of a political or governmental nature.</p> <p>6. Municipal Corporations — Annexation—Power to Tax. — In the absence of express statutory provision, a city which annexed part of a road district did not acquire power to tax the annexed property to redeem bonds of the district and pay the interest thereon.</p> <p>6. Municipal Corporations — Boad Improvement Bonds — Annexation — Statute—“In.”—Under Laws of 1907, chapter 66, section. 9, providing that the eounty supervisors shall issue road improvement bonds in the number and amount provided in proceedings for their issuance by a road district, which bonds shall be payable out of the road fund of such district, the money to be raised by taxation by the county supervisors “upon all of the taxable property in such district for the redemption of the bonds and the payment of the interest thereon,” where bonds of a road district were issued after part of the district, as originally formed, had been annexed by the city of Phoenix, under Civil Code of 1901, paragraphs 509— 517, but before another part of the district was so annexed property situated in the territory first annexed was not liable to taxation by the county supervisors to pay the bonds or interest, but property in the territory of the district annexed after issuance of the bonds was so liable, since “in,” used in the statute, has reference to space or place, and not to the corporate entity of the road district, while to construe the act otherwise than as requiring the-county supervisors to levy upon property in the district at the time of the bond issue would be to render it unconstitutional, as impairing the obligation of the district’s contract.</p> <p>[As to implied power of municipality to borrow money or incur indebtedness for publie improvements, see note in Ann. Cas. 1913D,. 77.2</p>

<p>1. Action — Joinder of Causes — Parties—Joint Tort. — Plaintiff properly joined in his aetion panties whom he alleged had combined and colluded together to defraud and cheat him out of his property, since they were charged with being joint wrongdoers in a common object.</p> <p>2. Evidence — Parol Evidence Affecting Writing — Fraud.—When parties competent to contract have reduced to writing the terms and conditions of their agreement, the law protects with great caution the written memorial of their contract thus made, and will permit its impeachment only for fraud or imposition.</p> <p>3. Contracts — Fraud—Degree of PIroof. — One challenging a written contract for fraud or mistake of fact must make his case by clear and convincing evidence, since written contracts are always presumed to be fair and honest in their inception and execution.</p> <p>4. Contracts — Avoidance for Fraud. — Where fraud or mistake is alleged as a ground for avoiding the stipulations of a'written contract, it must be made to appear, not that the party has made a bad bargain, but that he has been wrongfully or fraudulently induced to execute something contrary to what he thought to be his contract.</p> <p>5. Contracts — Validity — Mental Weakness. — Mere weakness of mind alone, without imposition or fraud practiced upon the party, forms no ground for vacating a contract; but if there is any unfairness in the transaction, such as gross inadequacy of consideration, the intellectual imbecility of the party may be taken into consideration to show such fraud as will afford ground for annulment.</p> <p>6. Contracts — Validity—Inability to Read. — Inability to read and understand the language in which a contract is negotiated, upon showing that its contents were misrepresented, justifies a court of equity in declaring it ineffective.</p> <p>7. Pleading — Demurrer—Admission.—A demurrer admits the allegations of the pleading to which it is opposed.</p> <p>8. Vendor and Purchaser — Fraud by Buyer. — Where the buyer of land, at request of the seller, who was feeble and unable to read English, read over the written contract between them, and, explaining it at the seller’s request, materially misrepresented its terms and that he had $1,800 in the bank to secure payments to the seller, and thereafter the seller delivered the conveyance to a bank officer to hold in escrow until the buyer should perform the conditions of the contract, which bank officer immediately transferred to the buyer without waiting for performance, taking a mortgage baek rto himself for the price, there were sufficient acts of fraud to entitle the seller to avoid the contract.</p> <p>9. Trial — By Court — Submission of Questions. — In a suit to cancel a deed, where the allegations of the complaint that plaintiff was in feeble health, illiterate and unable to read and understand English, were denied by the answer, as were allegations that defendant represented that by the .terms of the contract of sale plaintiff would receive such sums of money as he should require, and the whole purchase price within a year, and that defendant had on deposit in a bank $1,800 that he would pay as requested, appropriate questions embodying such issues should have been propounded and submitted to the jury by the court, since controverted questions of fact involved in an equity .case must be submitted to the jury.</p> <p>[As to when vendor may recover possession of the property from vendee, see note in 107 Am. St. Rep. 722.]</p>

<p>1. Appeal and Errob — Record—Filing -Statement oe Facts — Statute. — Under Civil Code of 1913, paragraph 603, requiring the filing of a statement of faets, bill of exceptions, or the transcript of the reporter’s notes within sixty days after the entry of judgment or the -order denying a motion for a new trial, or within such times as may be stipulated between the parties, or such additional time as may be allowed by the court by an order in the case, the statement of facts and transcript of the reporter’s notes filed in the lower court on July 29th, after a motion for new trial had been overruled April 30th, without any stipulation or order for an additional time, became no part of the record.</p> <p>2. Appeal and Error — Review—Judgment.—Where the evidence of trial is not before the supreme court because the statement of faets was not filed in time, its review is limited to the pleading, the general and special verdicts, and the judgment of the court.</p> <p>3. Waters and Watercourses — Determination op Rights — Review— Judgment — Parties.—In an action by the individual plaintiff, the owner of land in section 6, and the lessee of section 7, alleged to-be owned by a company made a party plaintiff, where the allegations of .the complaint limited the right to water in dispute to the individual plaintiff and the defendant, and the plaintiff company made no claim to the water in dispute, a judgment, as between the individual plaintiff and- defendant, that defendant have the quiet and peaceable possession of the water and the right to maintain a storage dam, was not erroneous, for failing to enter judgment in favor of the plaintiff company directing defendant to destroy his dam and cease storing water upon section 7.</p> <p>[As to appropriation of waters and what constitutes the same, see note in 60 Am. St. Rep. 799.]</p>

<p>Intoxicating Liquors — Unlawful Introduction into State — Personal Use. — Defendant, who brought intoxicating liquors into the state for his personal use, was not guilty of unlawfully introducing such liquors.</p>

<p>1. Municipal Corporations — Charter—Liability—Person Injured in Street — Repeal.—Constitution, article 13, section 2, provides for the adoption of charters, and that if the proposed new charter is ratified by a majority of the qualified electors, and approved by the Governor, it shall become the organic law of such eity and supersede any charter then existing, and all ordinances inconsistent with such charter. Civil Code of 1913, title 7, chapter 16, provides the procedure to be followed by a city desiring to frame a new charter, and paragraph 2033 provides that the new charter shall supersede any pre-existing charter, and the preamble to the new charter of the city of Phoenix declared that it was to supersede the former charter, and section 1 thereof gave the eity the powers necessary and proper for government, the regulation of its inhabitants, and its local affairs, etc. The former charter (Laws 1885, No. 61, art. 18, § 7) exempted the eity from liability for personal injuries resulting from the negligence of its officers and agents. Held, that the new charter superseded the old charter, and repealed and abrogated the exemption from liability for personal injury.</p> <p>2. Municipal Corporations — “Charter”—Liability.—The “charter” of a corporation is its constitution or organic law giving to it all the powers it possesses, unless other statutes are applicable to it, and the municipality's liabilities, or exemptions from liability, must be found .therein; so that if the corporation in the exereise of any of its powers, or the performance of any of its duties incurs liability in delicto, or in contractu, whether arising from express legislation or by implication, it cannot escape such liability, unless relieved therefrom by some valid provision of its charter and in a doubtful case a claim of exemption is to be resolved against it.</p> <p>3. Municipal Corporations — Liabilities — Exemptions — Statutes. Subdivision A, section 1, of chapter 2 of the charter of the city of Phoenix, providing that it shall have all the rights, privileges and immunities belonging to or exercised by a municipal corporation known as “the common council of the city of Phoenix,” did not operate to save and continue in force section 7, article 18; No. 61, Laws of 1885, its former charter, expressly exempting the city from liability for personal injury resulting from the negligence of its officers and agents; as to give .the provision sueh meaning would be to declare that the new charter did not supersede the old charter contrary to the express declaration in. the preamble of the new charter, and as none of the provisions of the old charter except as specifically set forth in the new charter, were continued as a part of the city’s organic law.</p> <p>4. Municipal Corporations — Constitutional Provisions — Amendment — Remsrence to Title — “Law.”—Under Constitution, article 4, section 14, providing that a law shall not be revised or amended by a mere reference to its title, and making it necessary in the revision or amendment of a law that it be set forth and published in full, and in view of Constitution, article 4, seetion 1, subdivision 8, authorizing qualified electors of cities to initiate laws, a city charter enacted by voters of a municipality is as much a “law” as if enacted by the legislature and hence subject to the inhibition against revision or amendment of a law by mere reference to the title; so that, if the new charter of the city of Phoenix be viewed as a revision or amendment of the old charter, the failure of the new charter to refer by title or otherwise to article 18; Act No. 61, of Laws of 1885, the former charter, would make any amendment of that article invalid.</p> <p>[As to constitutionality of code amendment or revision, see note in 86 Am. St. Rep. 267.]</p>

<p>1. Estoppel — Equitable Estoppel — Grounds.—That one desiring to establish credit represented that a piano in his house was his property, in reliance upon which the credit was granted, does not estop the owner of the piano, who roomed in the house where it was kept, in the absence of representations or misleading conduct on his part, from claiming it as against the creditor.</p> <p>2. Execution — Claim by Third Person — Attorney’s Em. — On the trial of a claim by a third party to property levied on, an allowance of an attorney’s fee to the claimant on judgment in his favor is erroneous.</p> <p>[As to estoppel in pais as question of law or fact, see note in Ann. Cas. 1913A, 1072.]</p>

<p>1. Corporations — Sale of Stock — Contracts—Meeting of Minds.— Where the maker of a note intended it as the purchase price of stock in an insurance company, while the payee believed he was selling stock in a holding corporation-, there was no meeting of the minds and no binding contract as to the sale of the stock.</p> <p>2. Corporations — Sale op Stock — Estoppel.—The failure of one who thought he was buying stock in an insurance company, and who gave a note for the purchase price, to examine the certificate attached to the note at the time he executed a renewal note, which would have disclosed that it was for stock in a holding company, did not, in the absence of anything to arouse his suspicions, or any action by the other party to his injury, estop the maker from setting up want of consideration for the note.</p> <p>8. Bills and Notes — Defenses—Want op Consideration — Renewal Note. — Between the original parties to a note, the defense of want of consideration can be urged against a renewal note as well as against the original note.</p> <p>4. Bills and Notes — Defenses Against Innocent Purchasers— Fraud and Want op Consideration. — The defenses of fraud and want of consideration cannot be interposed against a bona fide purchaser for value in due course.</p> <p>5. Corporations — Sale of Stock — Fraud—Representations op Increase. — A representation by the seller of corporate stock that it would increase to a certain price within a year, and that he would guarantee to sell it for that if given the privilege, is not fraudulent.</p> <p>6. Bills and Notes — Burden op Proof — Fraud—Want op Consideration. — In an action on a note, fraud and want of consideration are affirmative defenses, which must be established by defendant by clear and convincing proof.</p> <p>[As to burden of proving fairness of transaction, see note in Ann Cas. 1912A, 704.]</p>

<p>1. Bankruptcy — Jurisdiction—Bankruptcy and State Courts. — The jurisdiction of a state court to foreclose a mortgage is not divested by subsequent proceedings in bankruptcy in which the bankruptcy court directs the trustee in bankruptcy to make application to intervene in the foreclosure proceeding.</p> <p>2. Corporations — Foreign Corporations — “Carrying on Business.”— The prosecution of a suit in the state is not “carrying on business” ■within Civil Code of 1901, paragraphs 909, 911, forbidding a corporation to carry on any business, enterprise or occupation in the state until it has filed a certified copy ef its articles of incorporation or charter and the appointment of an agent, and has made publication of its articles of incorporation and proof thereof.</p> <p>3. Corporations — Foreign Corporations. — A foreign trust company in •accepting a .trust and executing in New York the trust deed on land in Arizona, does not violate any law of Arizona.</p> <p>4. Corporations — Foreign Corporations — “Carrying on Business.”— A single transaction does not constitute “carrying on business” within Civil Code of 1901, paragraphs 909, 911, forbidding foreign corporations to carry on business in tbe state except on compliance with certain requisites.</p> <p>6. Corporations — Parties—Defects and Objections — Substitution.— In an action by a foreign corporation as trustee to foreclose a deed of trust, bondholders secured by tbe deed of trust being the real parties in interest, even if the plaintiff were disqualified to aet for failure to comply with the requirements relating to foreign corporations, the bondholders would be substituted as plaintiffs and judgment entered according to their rights.</p> <p>6. Corporations — Bonds — Construction — Property Subject. — That special contract bonds provide for a retirement fund and an interest fund from tbe surplus earnings of the grantor in the deed of trust does uot make the bouds a nullity where there is a further provision that on default the bonds are enforceable against tbe entire mortgage property through a foreclosure suit, the appointment of a receiver, and a sale of the property.</p> <p>7. Corporations — Pledge of Stock — Consideration.—A pre-existing indebtedness is a sufficient consideration to sustain an assignment of corporate stock as security.</p> <p>8. Chattel Mortgages — Record — Necessity as Between Original Parties. — A chattel mortgage, even if not recorded, is valid and binding between the parties.</p> <p>9. Bankruptcy — Liens—Record—Trustee in Bankruptcy. — Where an assignment of corporate stock as collateral security was executed prior to the amendment of June 25, 1910 (Act June 25, 1910, e. 412, 36 Stat. 838), to the Bankruptcy Act (Aet July 1, 1898, c. 541, 30 Stat. 544), whether the instrument be regarded as a chattel mortgage or other lien., even though it be void as to creditors for want of recordation, tbe trustee in bankruptcy is bound by it as the bankrupt was.</p> <p>10. Corporations — Pledges—Distinction from Chattel Mortgages— Assignment of Corporate Stock. — An assignment of corporate stoek as collateral security, though transferring title to the stock, is a pledge and not a chattel mortgage.</p> <p>11. Pledges — Requisites—Delivery.—The .transfer of title of incorporeal property is generally an essential part of the delivery of it in pledge, and if there is a doubt whether it is a pledge or a mortgage, the law favors the conclusion that it is a pledge.</p> <p>12. Corporations — Trust Deed — Construction—Property Covered. — A deed of trust by a mining company of all its property of every kind, real, personal and mixed, is not restricted to property used in connection with the mines, smelter or railroad of the grantor.</p> <p>13. Corporations — Pledge op Stock — Foreclosure — Sale. — On the foreclosure of a pledge of shares of stock of a smelting company and a railroad company, there was no error in the sale of the shares of the two companies together where the court found it would be for the best interests of all parties.</p> <p>14. Appeal and Error — Record—Abstract.—It is the duty of an appellant to furnish the supreme court with am abstract whieh fairly represents all portions of the record bearing upon the appeal, and not merely those portions favorable to appellant.</p> <p>15. Appeal and Error — Review — Presumptions.-—On appeal to the supreme court, it is presumed that the judgment of the lower court is correct, and to overcome this presumption the error must be specified and the specification accompanied with an abstract of all that portion of the record whieh actuated the decision of the particular point.</p> <p>16. Appeal and Error — Record—Abstract—Questions Presented.— Unless an appellant presents an abstract fairly informing the court of the errors relied on, abstracting such portions as are necessary to a determination without investigating the original record, and the appellee does not supply .the deficiencies, but shows the default of appellant, the assignment of errors to that extent must be disregarded.</p> <p>[As to what constitutes doing business in slate by foreign corporation, see notes in Ann. Cas. 1912A, 553; Ann. Cas. 1913E, 1154.]</p>

<p>1. PIabdon — Reprieve—Effect.—The law of Arizona does not limit the period to which a reprieve may be granted, and as a reprieve merely postpones the execution of the judgment and does not and cannot defeat its ultimate execution, execution under a sentence to death would ordinarily take plaee on the expiration of the reprieve of the original sentence.</p> <p>2. Habeas Corpus — Function of Writ. — Where error, if any, in criminal proceedings, could have been corrected on appeal from the final judgment of conviction, the remedy is not in habeas corpus.</p> <p>3. Pardon — Reprieve — Expiration — Execution—Statute.—Where a sentence of death has not been executed, and the time fixed for the execution thereof has passed by reason of reprieves, the superior court in which the conviction was had, on application of the county attorney, would proceed under section 1147 of the Penal Code of 1913, and specify such time for the execution of such judgment as to it seemed meet and proper.</p> <p>4. Criminal Law — Harmless Error — Stvle of Warrant of Execution. — Where “The State of Arizona” would be the style of the order to be made directing and fixing a time for the execution of a death sentence unexecuted by reason of reprieves, the defendants could not be in any way prejudiced by tbe alleged irregularity in the style of the warrant of execution previously issued.</p> <p>[As to release of prisoner under habeas corpus after judgment and sentence, see note in 86 Am. St. Rep. 167.]</p>

<p>APPEAL from an order or judgment of the Superior Court of the County of Pinal in Rabeas Corpus. A. G. McAlister, Judge.</p>

<p>APPEAL from an order or judgment of the Superior Court of the County of Pinal in Habeas Corpus. A. G. Mc-Alister, Judge.</p>

<p>APPEAL from an order or judgment of the Superior Court of the County of Pinal in Habeas Corpus. A. G. Mc-Alister, Judge.</p>

<p>Railroads — Killing Stock. — Plaintiffs, partners, sued a railroad for the negligent killing of their livestock, range animals, by running locomotives, ears and trains over them; the specific acts of negligence being charged to have arisen from the road’s failure to maintain sufficient fences and by its negligent operation of its trains. Held, that judgment for plaintiffs would be reversed, and the cause remanded for new trial.</p> <p>[As to failure of railroad to comply with fencing statute as negligence, see note in Ann. Cas. 1912D, 1106.]</p>

<p>1. Partnership — Actions — Pleading Partnership. — Where partners. sue, a complaint not alleging partnership except in its title is defective, although sustainable against a general demurrer.</p> <p>2. Action — Separate Causes of Action. — A complaint which, although describing several causes of action as one, states them separately, although not stating at the beginning of each cause the corporate or partnership capacity of the parties, is informal, but not demurrable for misjoinder of causes of action.</p> <p>3. Railroads — Injuries to Animals — Actions — Presumption. — By the terms of Civil Code of 1913, paragraph 3789, the killing or injury of a domestic animal by being run over by an engine or car is prima facie evidence of negligence of the railroad company.</p> <p>4. Evidence — Documents—Railroad Records of Stock Killed. — The record of stock killed or crippled by railroads on each section, required by Civil Code of 1913, paragraph 3768, to be kept at section-houses for public inspection, is competent evidence in an action for such killing, both as an admission and as a memorial of the facts kept under the requirements of law.</p> <p>5. Evidence — Secondary Evidence. — A witness cannot testify to the contents of a record required to be kept by Civil Code of 1913, paragraph 3768, as to stoek killed, without first proving its loss, destruction or his inability to produce.</p> <p>6. Witnesses — Testimony—Refreshing Memory. — The use of a memorandum, made in part from the record of another, to refresh the witness’ memory, is error, being an invasion of the rule against secondary evidence.</p> <p>7. Evidence — Admissions of Section Foreman. — As Civil Code of 1913, paragraph 3768, requires him to keep a record of stock killed, a section foreman’s statement that stock was killed by the railroad is an admission of the railroad company.</p> <p>[As to right of witness to use memoranda to refresh and assist memory, see notes in 98 Am. Dec. 619; 35 Am. Rep. 56.]</p>

J. C. Phillips, Judge. STATEMENT OF FACTS BY THE COURT. The appellee, W. N. Bryan, was in the employ of the appellant company as track foreman, or section foreman. His employment required him to engage for the company a sufficient crew of laborers, known as a section crew, to keep the railroad track in repair, and to handle the necessary repair material and tools for use in the work.

<p>1. Accord and Satisfaction — Part Payment — Release in Pull — Effect. — Where it appeared that the state owed plaintiff, a contractor, the sum of $26,536 upon a liquidated amount, the contractor’s written receipt in full upon the payment of $14,774, induced by financial embarrassment, inability to meet demands of creditors, ete., did not absolve the state from the whole debt, but operated as a payment only to the extent of the amount actually received.</p> <p>2. Accord and Satisfaction — Requests—'Consideration.—Accord and satisfaction is the result of a contract, and, like all other contracts, must be founded upon a consideration to be binding; so that where no consideration appeared as moving from a debtor to its creditor for the remission of a part of the indebtedness, no aecord and satisfaction resulted from the creditor’s receipt in full given on his receipt of part of the amount due, but the difference was still owing to the creditor.</p> <p>[As to the law of accord and satisfaction, see note in 100 Am. St. Rep. 390.]</p>

<p>Electricity — Franchises—Forfeiture—Waiver.—A city granted to a gas company, its successor and assigns, a city electric system franchise on condition that it should install an electric system in the city within eighteen months. The gas company duly accepted the franchise and assigned it to a power company, which did not comply with, its terms within the eighteen months, except by mere colorable construction, later destroyed by fire. The franchise was then sold at a foreclosure sale to one from whom for valuable consideration the-defendant purchased it in good faith, knowing its history, but not knowing that the city intended to forfeit or cancel it. The defendant at the time of purchase had a complete and operating electric system-Sn the city and tendered full performance of the franchise requirements. There was no complaint by any citizen of nonuser of the-franchise nor of defendant’s operation under it since its acquisition.. Shortly after the purchase the city took steps to forfeit and cancel the franchise. Held, the franchise by full performance by defendant had beeome an inviolable executed contract, which the city could not forfeit.</p> <p>[As to whether judicial declaration of breach of condition is essential to a forfeiture of franchise, see note in 5 Am. St. Rep. 803.]</p>

<p>1. Master and Servant — Employers’ Liability Act — Superintendents — “Workman”—“Employee.”—In view of Constitution, article 18, section 7, directing the legislature to enact laws “to protect the safety of employees in all hazardous occupations,” a superintendent of a construction company injured by a delayed blast, while in such employment, is entitled to recover for such injuries under the employers’ liability law (Civ. Code 1913, §§ 3153-3162), as the words “workman” and “employee” are used therein interchangeably and with the same meaning, and a superintendent is included in the term “employee.”</p> <p>2. Statutes- — -Construction—Words.—Any unhappy or careless use of words, especially when expressive of cognate ideas, should not be construed so as to defeat the avowed intention of the law-making body.</p> <p>3. Statutes — Construction—Legislative Intent. — The first rule of interpretation and construction of statutes is that the intention of the legislature, when determinable, shall control.</p> <p>[As to construction of statutes so as not to recognize casus omissus, see note in Ann. Cas. 1913D, 711.]</p>

<p>1. Statutes — Construction.—Since homesteads are purely creatures of statute, it must be looked to, to determine the meaning of homestead, and, if its language is plain, the courts must follow it, but, if ambiguous, construction of other similar statutes may be consulted.</p> <p>2. Homestead — What Constitutes — Business Property. — Under Civil ■Code of 1913, paragraph 3288, providing that every head of a family whose family resides in the state may hold as homestead, exempt from attachment, execution and forced sale, real property to be selected by him, in one compact body, consisting of the dwelling-house in which he resides and the land on which it is situated, or of land that he shall designate, the homestead may consist of real estate, if properly selected, whether it is occupied by the claimant for a dwelling or not.</p> <p>3. Homestead — Bight to Exemption — Ownership in Common. — Under such statute and paragraph 3291, providing that the homestead may be selected from community property or separate property, and in accord with public policy to protect family property and prevent the family from becoming a public charge, the community property of the husband and wife does not lose its character by investment in business property in common with another, but is still exempt as a homestead, if claimed.</p> <p>[As to homestead exemption as extending to premises used as hotel or lodging-house, see note in Ann. Cas. 1913E, 1256.]</p>

<p>1. Trover and Conversion — Complaint. — A complaint averring that defendants entered into a conspiracy to deprive plaintiff of her property in a cattle ranch, that one of them was a joint owner with plaintiff, that he conveyed all the stock to his codefendant, who conveyed in turn to a third .person, that such conveyances were made with knowledge of plaintiff’s interest, states a canse of action, entitling plaintiff to recover a proportionate share of the purchase price.</p> <p>2. Pleading — Answer—Denial—Negative Pregnant. — Such complaint averred that defendants were entirely familiar with each other’s .business and affairs, while answer denied that defendants were entirely familiar with each other’s affairs. Held, that it was an admission that they were familiar with each other’s affairs, and unless specifically denied that both had knowledge of the fraudulent scheme in question.</p> <p>3. Husband and Wife — Eights op Wife — -Eights of Action. — Under Civil Code of 1913, paragraph 3851, declaring that married women shall have the sole and exclusive control of their separate property, a woman has a right of action against her husband for hi3 conversion of her separate property.</p> <p>4. Trover and Conversion — Actions—Jury Question. — In an action for the conversion of property, the question of the value of plaintiff’s property converted is one for the jury, and it is improper for the court to determine that issue.</p> <p>[As to conversion of personalty sufficient to sustain action of trover, see note in 24 Am. St. Rep. 795.]</p>

<p>APPEAL from a judgment of the Superior Court of the “County of Apache. P. W. Perkins, Judge.</p>

<p>■1. Waters and Watercourses — Irrigation—Waste Water. — One who appropriates waste water flowing off the premises of another after it has been used for irrigating can claim no vested right in his appropriation; for the original appropriator may destroy such rights either by using less water or by ceasing the appropriation.</p> <p>2. Waters and Watercourses — Irrigation.—A prior appropriator whose waste water plaintiff formerly used joined in a government project, whereby he was supplied with water and subscribed to a corporation distributing the water under a new system of canals. The corporation managing the canals contemplated no waste water and proceeded by making new laterals, to collect all waste water and use it upon lands situated below. Held, that plaintiff could not restrain the corporation from diverting the waste water from his premises; for he had no vested rights in the waste water, and it was within the power of the irrigation company to conserve such water, though it was not personally recaptured by the appropriator from whose land plaintiff originally received it.</p> <p>2. Waters and Watercourses — Admissibility.—In such ease the articles of incorporation of the company distributing the water, as well as the contract between it and the government, are admissible in evidence.</p> <p>[As to prescriptive right of land owner to waste water coming from land of another, see note in Ann. Cas. 1915C, 1165.]</p>

<p>1. Mines and Minerals — Conveyances—Rescission—Sufficiency of Complaint. — A complaint, in an action to set aside a deed to mining property from one co-owner to another, alleging the existence of a confidential relationship between the parties by reason of the grantee’s having the management of the property and having special facilities for acquiring information, the discovery and concealment by the grantee of material facts affecting the value of t'he mine, and the sale of the grantor’s interest to the grantee for a grossly inadequate consideration, held to sufficiently state a cause of action.</p> <p>2. Fraud — Fraudulent Concealment — “Actual Fraud,” — fThe concealment by one party to a transaction of a material fact within his own knowledge, which it is his duty to disclose, is actual fraud.</p> <p>3. Mines and Minerals — Conveyances—Fraud.—A deed from a part owner of mining property to his co-owner, with whom he was on unfriendly terms, is not subject to rescission merely because the grantee concealed from the grantor, results of development work that increased the speculative value of the property, but disclosed no new or different conditions from those already known to the grantor.</p> <p>[As to right of grantor to cancellation of deed on ground of misrepresentation by grantee as to condition, value, etc., of property, see note in Ann. Cas. 1912A, 405.]</p>

<p>3, Evidence — Admissions by Agent — Effect of. — Declarations of an agent are admissible against the principal only when the agent is. acting within the scope of his authority, and this rule applies to corporate agents.</p> <p>2. Evidence — Agents—Powers of Secretary.' — Declarations by the secretary of a corporation that a meeting of the board of directors had been ordered to pass upon a lease whieh purported to have been executed by the corporation are not binding on the corporation when made by the secretary in a casual conversation with one who intended to acquire an interest in the lease; such declarations not being within the scope of the power of the secretary who has not t'he power of a general or managing agent, and this being particularly true where the prospective purchaser did not request permission to examine the corporation’s books.</p> <p>3. Corporations — Lease—Validity—“Equitable Estoppel.” — Defendant, before purchasing an interest in a mining lease purporting to have been executed by the corporation, in a casual conversation asked the secretary of the corporation whether a meeting of the directors to approve the lease had been ordered. The secretary replied that it had, and that the corporate minutes so recited. Defendant did not inform the secretary that he intended to acquire an interest in the lease, nor did he request permission to examine the books of the corporation. The minutes did so falsely declare. Held that, though estoppel in pais or equitable estoppel, not being an estoppel preventing a party from telling the truth, but one arising out of conduct or misrepresentations, is not in disfavor, yet the corporation was not estopped by the secretary’s conduct from questioning the validity of the lease; for defendant was not dealing with the corporation, nor was his interest declared, and the declarations of the secretary did not show the lease to be valid.</p> <p>Corporations — Void Lease — Rights of Tenant — Moneys Spent.— Where a mining lease purporting to have been executed by a corporation was void, one entering under such lease, while chargeable with the value of ore extracted, is not entitled to reimbursement for money spent on the premises, but is to reimbursement for rents paid.</p> <p>[As to admissions and declarations of agent's in actions against principals, see note in 53 Am. Dec. 773.]</p>

<p>1. Pleading — Conclusions.—A complaint, in an aetion to recover purchase money paid for land bought at public sale, which alleges merely the legal conclusion' that defendant had “no lawful right to make such sale,” and sets forth no facts on which such conclusion is based, and alleges no fraud, duress or mistake, states no ground of recovery.</p> <p>2. Pleading — 'Complaint—Demurrer.—The court is confined to the allegations of the complaint in testing its sufficiency on general demurrer.</p>

<p>1. Public Lands — Eailroad Eight of Way Over Public Lands. — ► Under Act Cong. March 3, 1875, c. 152, 18 Stat. 482 (U. S. Comp. Stats. 1913, §§ 4921-4926), a railroad right of way over publie lands may be acquired in two ways, to wit, by the actual construction of the road or by the approval of the Secretary of the Interior after definite location and filing profile of the road in the local land office.</p> <p>2. Public Lands — Eailroad Eight of Way — Presumptions.—Where a> railroad has been granted a permit nnder Act Cong. March 3, 1899, c. 427, 39 Stat. 1233 (U. S. Comp. Stats. 1913, §4945), to enter a forest reserve and its map of location approved by the Secretary of the Interior, it must he presumed that the road has conformed with the rules of the Interior Department, that it was rightfully upon the reservation, and that the construction was sanctioned by the proper authorities.</p> <p>3. PUblic Lands — Eailroad Eight of Way Acquired by Construction. — The actual construction of a railroad having proper permission nnder Act Cong. March 3, 1899, to enter a forest reserve invests the railroad with title to its right of way.</p> <p>4. Public Lands — Eailroad Eight of Way — Limitation by Purchase. Where a railroad company purchased a right of way over a mining location, such right of way was limited by the terms of the purchase so long as the land remained a mining location, but not when hy abandonment it reverted to the public domain.</p> <p>6. Equity — Equity Follows Law. — Under the maxim that equity follows the law, a railroad right of way fixed hy law at 100 feet on each side of the center line of the track cannot be reduced merely because equitable considerations would seem to entitle an adjoining land owner to a portion of such right of way.</p> <p>6. Constitutional Law — Judicial Powers — Encroachment.—A grant of a railroad right of way has been fixed by Congress at 100 feet on each side of the center of the track, and the power to so fix it is a legislative function which cannot he reviewed hy the courts.</p> <p>V. Public Lands — Railroad Right oh Way — Time oh Acquiring Title. Where a railroad company long after constructing its road filed its amended map and profile in the local land office, its title to its right of way was initiated by construction of tbe road and not by filing such map.</p> <p>8. Public Lands — Homestead — Time oh Acquiring Title. — Where defendant after holding land under a mining location abandoned it and immediately established a homestead residence thereon which finally ripened into a patent, his title as against a railroad claiming a right of way dated from his homestead residence, not from, his prior mining location.</p> <p>S. Public Lands — Railroad Right oh Way — Capacity to Acquire.— One holding title to a homestead, on which residence was acquired subsequent to the construction of a railroad, cannot attack the grant of right of way on the ground that the railroad had no capacity to accept the grant.</p> <p>[As to existence of right of way of railroad as breach of covenant of warranty in deed, see note in Ann. Cas. 1912C, 650.]</p>

<p>Bail — Eight to Bail — Capital Offenses. — Constitution, article 2, section 22, providing that all persons charged with crime shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great,- by its own terms guarantees the right to bail before conviction in capital cases, unless the proof of the commission of the capital offense is evident or the presumption thereof is great.</p> <p>[As to admission to bail after indictment for murder, see note in 81 Am. Dec. 87.]</p>

<p>APPEAL from a judgment of the Superior Court of the County of Pima. W. A. O’Connor, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Pima. W. A. O’Connor, Judge.</p>

<p>3. Municipal Corporations — Public Improvements — 'Constitutional Requirement — Popular Vote. — Constitution, article 7, section 13, providing that special assessments shall he voted on by the political subdivision affected, is not violated by Civil Code of 1913, paragraphs 1953-1977, authorizing eities to make local improvements hy assessing the benefited property owners, since the city is not liable for, and not affected by, such improvements.</p> <p>Ü. Municipal Corporations — Public Improvement^ — Power to Make —Drains.—Under Civil Code of 1913, paragraph 1954, and Aet of March 3, 1915 (Laws 1915, c. 15), the city of Phoenix was authorized to order the construction of drains which, in its opinion, were necessary to complete any paving work.</p> <p>.3. Municipal Corporations — Public Improvements — Power to Make —Determination—Necessity.—The city’s determination that certain drains were necessarily incidental to paving work was conclusive after the work was completed and assessments levied therefor.</p> <p>-4. Municipal Corporations — Public Improvements — Enforcement op Assessment — Defense—Damages Caused by Improvement.— "Where a city assigned assessment warrants to a paving contractor who brought suit under Civil Code of 1913, paragraph 1966, as the real party in interest, defendant property owner cannot counterclaim against the contractor because the city adopted defective plans for the work.</p> <p>•5. Municipal Corporations — Public Improvements — Enforcement of Assessment Lien — Evidence—Admissibility.—A warrant, assessment and diagram, with the affidavit of demand and nonpayment, is admissible under Civil Code of 1913, paragraph 1966, making such documents prima facie evidence of plaintiff’s right to enforce an assessment lien.</p> <p>•6. Municipal Corporations — Presumptions — Statute — Validity.— Civil Code of 1913, paragraph 1966, making the warrant, assessment and diagram, with affidavit of demand and nonpayment, primas fade evidence of plaintiff’s right to recover on an assessment warrant, is a valid rule of evidence.</p> <p>7. Municipal Corporations — Public Improvements — Enforcement of Assessment — Evidence—Sufficiency.—Evidence held to sustain a finding that two drains affected different portions of defendant’s property, and therefore did not subject it to a double assessment.</p> <p>$. Municipal Corporations — Public Improvements — Enforcement of Assessment — Defense and Waiver. — In an aetion to enforce an assessment lien, the defense that a drain was defectively constructed is waived by failure to protest within a reasonable time.</p> <p>§. Municipal Corporations — Public Improvements — Enforcement of Assessment — Defense.—The failure to protest is not excused because it was impossible to determine that defendant’s property would be injured until the work was completed.</p> <p>[As to judicial inquiry into motives prompting enactment of ordinance relating to local improvement, see note in Ann. Cas. 1912A, 718.]</p>

<p>1. Mandamus — Proceedings — Verification of Application. — Under Civil Code of 1913, paragraph 1554, requiring applicant for writ of mandamus to file complaint naming him as plaintiff and the adverse party as defendant, and to verify the complaint, verification on information and belief is insufficient.</p> <p>2. Mandamus — Proceedings—Notice.—Under Civil Code of 1913, paragraph 1556, providing that mcmdamm issued without notice to the adverse party shall he in the alternative, peremptory writ cannot issue without ten days’ notice to the defendant.</p> <p>[As to mandamus and the duties, performance of which may he compelled hy it, see note in 125 Am. St. Rep. 492.]</p>

<p>Intoxicating Liquors — Offense — Unlawfully Introducing Liquor into State. — -In a proseeutiou for unlawfully introducing into the state intoxicating liquors, the faet that such liquors were intended for defendant’s own use may be shown as a defense.</p>

<p>1. Evidence — Evidence of Other Transactions — Breach of Contract. In an action for breach of contract of sale in refusing to accept delivery of cattle, evidence that defendant with consent of plaintiff deducted $3,000 from purchase price of previous shipment under same contract is inadmissible and prejudicial, as creating an improper inference that defendant wrongfully took advantage of plaintiff in another transaction not involved in the action.</p> <p>[As to effect on sale of fraudulent concealment by vendor, see note in 15 Am. Dec. 106.]</p> <p>2. Sales — Contract of Sale — Modification—Effect.—Upon delivery of cattle under contract of sale, the agreement by seller to allow a deduction to defendant from purchase price, for deterioration of cattle, is a modification of the original contract and binding on the seller.</p> <p>3. Sales — Action for Breach — Instructions. — In an action for breach of contract in refusing to accept delivery of cattle, where court improperly admitted evidence that defendant deducted $3,000 from purchase price of previous shipment under the same contract, a refusal to correct the error in admitting such evidence, by instructing the jury that plaintiff was bound by his acceptance of the deduction with full knowledge of the faets, held prejudicial error.</p> <p>4. Sales — Contract—Performance—Waiver—-Modification. — Where: plaintiff, after contracting to sell and deliver certain cattle from a certain herd, subsequently sold merchantable cattle from such herd to other buyers, while the acceptance by the buyer of two-shipments of inferior cattle was a waiver of the terms of the contract as to such shipments, his refusal to accept further shipments of such inferior cattle was not a breach for which he was liable.</p> <p>5. Sales — ‘Contract—Breach.—Where defendant bought cattle to be selected by him from all the cattle of a specific herd, the sale by the owner to other buyers of cattle from such herd was a breach of the contract, and defendant was not obligated to accept the culls and remnants of such herd.</p> <p>6. Sales — 'Contract—Breach—Title of Seller at Time of Sale.— No breach of contract of sale can be based on the fact that, at the time of sale, the seller was not the owner, and had no authority to sell, unless at the time of delivery the seller refuses or is; unable to make delivery.</p> <p>7. Sales — Breach of 'Contract — Inability to Deliver — Damages.—Where plaintiff, after selling cattle to be selected by defendant from all cattle of certain herd, sold a large quantity of the best cattle from such herd to other buyers, his inability to deliver the kind and quality of eattle contracted for was a breach of the contract for which defendant was entitled to damages.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Graham. A. G. McAlister, Judge.</p>

<p>On Rehearing.</p> <p>1. Appeal and Error — Review—New Trial — Appellate Court Bound by Record. — The appellate court is bound by the record as made, and may not consider reasons for awarding new trial not urged on motion for new trial, and judgment for the proper party on sufficient evidence will not be reversed for erroneous instructions, and remanded on the theory that additional evidence might be adduced at another trial.</p> <p>2. Appeal and Error — Harmless Error — Erroneous Instruction — • Verdict por Proper Party. — In an action on contract, a judgment for defendant will not be reversed for erroneous instructions, where the evidence so conclusively shows no meeting of the minds, that no other verdict could be proper.</p>

<p>1. Criminal Law — Instructions — Mitigation or Justification — Burden of Proof. — In a trial for murder, an instruction that, the-commission of the homicide by the defendant being proven, the burden is on him to prove justification or mitigation, etc., following Penal Code of 1913, section 1046, held not error, as assuming that defendant committed the homicide.</p> <p>2. Homicide — Burden of Proof — Reasonable Doubt. — The commission of homicide must be proved beyond a reasonable doubt, whether the evidence be that of eye-witnesses, attending circumstances, or the admission of defendant in reliance on self-defense, or legal justification, or excuse.</p> <p>3. Homicide — Appeal and Error — Harmless Error — Instructions-not Prejudicial. — Under Constitution, article 6, section 22, and Penal Code of 1913, sections 1170, 1289, a conviction for murder will not be reversed for an erroneous instruction, where the evidence so conclusively demonstrates the guilt of defendant that no other-verdict would have been proper.</p> <p>é. Homicide — Evidence—Sufficiency.—Where there was testimony tending to show that after deceased was fatally shot, but before life was entirely extinct, defendant struck him with a heavy rock,, evidence held sufficient to sustain conviction for second degree-murder.</p> <p>[As to killing or assaulting friend or relative as provocation sufficient to reduce homicide from murder to manslaughter, see-note in Ann. Cas. 1914B, 457.]</p>

<p>1. Asylums — Public and Private — “Almshouse.” — An “almshouse” may be a public institution kept up by publie revenues, or it may be an institution maintained by private endowment and contributions, where the indigent sick and poor are cared for without cost to themselves.</p> <p>2. Infants — Mothers’ Pensions — Constitutional Provisions. — Initiated Act Nov. 3, 1914 (Acts 1915, Initiative Measures, p. 10), providing for old age and mothers’ pensions, if its language abolishing almshouses be construed to include state institutions, would violate Constitution, article 22, section 15, providing for establishment and support by the state of reformatory and penal institutions and institutions for the benefit of the insane, blind, deaf and mute, and other institutions required by the public good.</p> <p>3. Counties — Officers—-Powers Delegated. — County supervisors can exercise no powers except those specifically granted by statute and in the manner fixed by statute.</p> <p>4. Municipal Corporations — Powers—Mode of Exercise of Powers. "Where the method of exercising powers conferred by statute upon municipal corporations is by statute specifically prescribed, the method is jurisdictional.</p> <p>5. Infants — Statutory Provisions — Mothers’ and Old Age Pensions. Under Act Nov. 1914, providing for old age and mothers’ pensions, abolishing almshouses in the state and establishing such pension system “in the absence of almshouses,” the system does not take effect until after the abolishment of all almshouses.</p> <p>6. Statutes — Titles — Subject not Embraced in Title. — Such act, being entitled, “An act providing for an old age and mothers’ pension and making appropriation therefor,” violates Constitution, article 4, section 13, providing that the subject of an act shall be expressed in the title, since it provides, not only for the establishment of old age and mothers’ pensions, but also eovers the abolishment of the statutory system of county hospitals and poor farms, leaving the different counties without any means or provisions for the care of their indigent sick and poor, not entitled to pensions.</p> <p>7. Statutes — Titles—Subject not Embraced in Title. — Constitution, article 4, section 13, requiring the subject of an act to be embraced in its title, does not require that a title of an aet should minutely and in great detail describe the legislation proposed or be a complete index to the legislation.</p> <p>8. Statutes — Titles—Subject not Embraced in Title. — The title of an act should be sufficiently full and comprehensive to indicate, in. a general way at least, what is to follow in the way of legislation, and should not be so meager as to tend to avert inquiry into the contents thereof.</p> <p>9. Statutes — Titles—Subject not Embraced in Title. — Such constitutional provision is liberally construed.</p> <p>10. Infants — Mothers’ Pension Law — Constitutionality.—Initiated Act Nov. 3, 1914, providing for old age and mothers' pensions, cannot be sustained, in that it requires the support by pension of certain mothers with dependent children, regardless of their financial, condition.</p> <p>[As to vested right of pensioner to pension, see note in Ann. Cas. 1915C, 751.]</p>

<p>1. Municipal Corporations — Officers and Employees — Power of Removal — Limitation.—Under Phoenix City Charter, chapter 3, section 4, providing that the city manager shall be appointed by the commission and shall hold office until his removal by the commission, the power of removal is as broad as the power of appointment; the only limitation being that it must be for cause, and cannot be arbitrarily or whimsically exercised.</p> <p>2. Officers — Removal—“Cause.”—The phrase for "cause,” when used in reference to removal of officers, means not the arbitrary will of the appointing power, but some cause affeeting or concerning the ability or fitness of the officer to perform his duties.</p> <p>3. Officers — Removal—Hearing.—The power to remove an officer for cause can be exercised only upon charges filed, notice and reasonable opportunity to the officer to be heard.</p> <p>4. Municipal Corporations — Officers and Employees — Removal for Cause — Determination of Cause for Removal. — Where the causes for removal of a municipal officer are not enumerated by law, the commission must determine in the first place what is sufficient cause for removal, subject to review by the courts to the end that this power may be honestly, fairly and reasonably exercised and not through caprice or prejudice.</p> <p>5. Municipal Corporations — Officers and Employees — Removal — Judicial Proceedings. — A city commission in the trial of charges against a municipal officer or employee exercises judicial functions.</p> <p>6. Municipal Corporations — Removal of Officers — Trial and Hearing — Rules of Procedure. — A eity commission, not being a judicial body, should not be bound by hard-and-fast rules of judicial procedure in proceedings for the removal of a municipal officer.</p> <p>7. Municipal Corporations — Officers and Employees — Removal — Necessity of Resolution or Ordinance. — Proceedings for the removal of city manager need not be by resolution or ordinance, under Phoenix City Charter, chapter 4, section 8, requiring the commission to act only by resolution or ordinance.</p> <p>8. Municipal Corporations — Officers and Employees — Removal — Jurisdiction of Commission. — "Where notice of charges was given city manager, and he was present at hearing and permitted to introduce evidence in his own behalf, held, the eity commission had jurisdiction, regardless of the validity of an emergency ordinance providing the procedure for his particular case.</p> <p>9. Certiorari — Return—Transcript of Evidence — Removal of Officer. — Under Civil Code of 1913, paragraph 1498, requiring a party, to whom a writ of certiorari is addressed, to certify fully to the court issuing t'he writ and annex to the writ a transcript of the record and proceedings, the evidence should be returned with the record.</p> <p>10. Municipal Corporations — Proceedings to Remove Municipal Officer — Certiorari — Evidence — Review. — On certiorari to review proceedings to remove a municipal officer, the evidence will be considered only for the purpose of ascertaining whether there is any evidence to sustain the decision, and whether it furnished any substantial basis for the adjudication.</p> <p>11. Municipal Corporations — Removal of Officer — Certiorari—Evidence in “Support” of Finding. — In review of evidence on certiorari, evidence in “support” of charges means evidence, tending to show the charges true or trustworthy, substantiated, vindicated, defended.</p> <p>12. Municipal Corporations — Removal of Officer — Petition — Certiorari — Allegations Binding on Pleader. — Where the petition in certiorari, to review proceedings for removal of municipal officer, alleges that evidence was heard in support of charges, held that such allegation is binding on pleader, and the return of the evidence is not necessary, since the court will not examine into its sufficiency.</p> <p>[As to mode of procedure governing municipal or other board when exercising judicial functions, see note in Ann. Cas. 1915B, 1083.]</p>

<p>APPEAL from a judgment of the Superior Court of the County of Gila. G. W. Shute, Judge.</p>

<p>On Rehearing.</p> <p>1. Appeal and Error — Rehearing—Grounds.—The grounds stated in the motion, amounting to only an argument with the court as to the law applicable to the facts stated, present no grounds for rehearing.</p> <p>2. Corporations — Offer to Sell Stock — Acceptance.—There was no contract of transfer of corporate stock where offer to exchange it on condition was met by counter conditional offer, which was not accepted.</p> <p>[As to failure to deliver stock as defense to action on note given to corporation for stock, see note in Ann. Cas. 1915A, 422.]</p>

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. Alfred C. Lockwood, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Yuma. Frank Baxter, Judge.</p>

<p>1. Insurance Policy — Prerequisite to Cancellation. — Under a provision of an insurance policy providing for cancellation, and “that when the policy is canceled by the company by giving notice, it shall retain only the pro rata premium,” which policy was not governed by Civil Code of 1913, paragraph 3441, defining cancellation clauses, a return or tender of the unearned premium was a prerequisite to the cancellation of the policy.</p> <p>2. Insurance — Cancellation Clause — Construction.—Any ambiguity in the cancellation clause of an insurance policy will be resolved in favor of the insured.</p> <p>[As to necessity of return or tender of unearned premium to effect cancellation of fire insurance policy by insurer, see note in Ann. Cas. 1913D, 490.]</p>

<p>APPEAL from a judgment of the Superior Court of the 'County of Yuma. O. J. Baughn, Judge.</p>

G. W. Shute, Judge. STATEMENT op pacts by the couet. The appellant was informed against, tried and convicted for the violation of paragraph 717, Penal Code of Arizona, 1913, viz., having willfully, intentionally and unlawfully permitted one Agnes Silka, a female person, to he employed in its hotel dining-room, and work eight hours, and to so work eight hours, said eight hours of work not being performed within a period of twelve hours.

<p>1. Criminal Law — Appeal and Error — Dismissal of Appeal. — Under-Penal Code of 1913, sections 1164-1167, the failure of defendant' in a criminal prosecution to file the abstract of record within the. time specified by Penal Code of 1913, section 1163, and his failure to file a brief or prosecute the appeal, are insufficient grounds for-dismissal of the appeal.</p> <p>2. Intoxicating Liquors — Indictment and Information. — An indictment for attempting to introduce intoxicating liquor into the state of Arizona under Constitution, article 23, section 1, must aver the-ultimate facts constituting the offense, i. e., the intention of accused to pass such liquors into the state from another state or from a foreign country, a direct act done in furtherance of such intention, and the failure of the attempt due to some intervening cause beyond the control of accused.</p> <p>3. Intoxicating Liquors — Criminal Prosecution — Sufficiency of-Evidence. — In a prosecution for attempting to introduce intoxicating liquors into the state under Constitution, article 23, section 1,. an indictment that the defendant did unlawfully and willfully attempt to transport, bring, and carry into the county of Apache, state ■ of Arizona, a quantity of whisky, etc., held insufficient to charge the-offense of introducing intoxicating liquor into the state.</p> <p>4. Intoxicating Liquors — Indictment and Information — Sufficiency. In a prosecution for attempting to introduce intoxicating liquors, into the state in violation of Constitution, article 23, section 1, evidence held insufficient to show that defendant, who was apprehended at the state boundary line, committed any act within the state for-the purpose of introducing intoxicating liquors into the state.</p>

<p>1. Perjury — Information—Sufficiency.—Under Penal Code of 1913, section 950, an information for perjury is sufficient if it sets forth the substance of the controversy or matter in respect to which the offense was committed, the court in which the oath was taken, and that the court or the person before whom the oath was taken had authority to administer it, with the proper allegations of the falsity of the matter on which perjury is assigned.</p> <p>2. Perjury — Information—Sufficiency.—An indictment for perjury alleged to have been committed in a civil action in justice court held insufficient' under Penal Code of 1913, sections 936, 950, in that it failed to set forth the particular circumstances of the offense charged which were necessary to constitute the complete offense.</p> <p>[As to indictments for perjury, see note in 124 Am. St. Rep. 654.]</p>

Alfred O. Lockwood, Judge. STATEMENT OF FACTS BY THE COURT. The appellant, Felix Lopez, was tried and convicted of the willful, deliberate and premeditated murder of Rosendo Lugo, committed by stabbing with a knife. The jury fixed the punishment at imprisonment for life. On the tenth day of July, 1915, the court duly pronounced sentence and judgment in accordance with the verdict, and refused a new trial. From the judgment and order refusing a new trial the defendant appeals.

<p>1. Vendor and Purchaser — Fraud and Deceit. — One who is induced to purchase land by fraud and deceit is entitled to recover purchase price, not only from the persons to whom the money was paid, but from others who received it and into whose hands it can be traced.</p> <p>2. Vendor and Purchaser — Fraud and Deceit. — In an action by the purchaser of land against defendant bank for the recovery of money paid for the purchase of lands on the ground of fraud and deceit, the evidence showed that the bank received no portion of the purchase price, but that the money was paid to other persons; held that plaintiff could not reeover against the bank, but only against those who received the money.</p> <p>[As to representations by a vendor of land as to value of the property, see notes in 15 Am. Rep. 382; 18 Am. St. Rep. 556.]</p>

<p>1. Homicide — Evidence —Admissibility —Previous Quarrels. — While, as a general rule, evidence oí prior difficulties are inadmissible, yet evidence of difficulties or quarrels so closely connected with the homicide as to be fairly regarded as a contributing feature is admissible.</p> <p>2. Criminal Law — Homicide — Evidence — Res Gestae — Previous Quarrels. — In a prosecution for homicide, the evidence showed that defendant, a negro soldier, after escaping arrest by police officers, returned to his quarters, procured his rifle, and thereafter killed one of police officers. Held that evidence of the circumstances of the first affray were admissible as part of the res gestae.</p> <p>3. Homicide — Evidence—Sufficiency.—Evidence held sufficient to support a verdict of murder in the second degree.</p> <p>4. Homicide — Self-defense — Evidence — Sufficiency. — The plea of self-defense is not available to one who was at fault in provoking the difficulty that resulted in the homicide.</p> <p>[As to the defense of self-defense by one who has made an attack or voluntarily entered into a rencounter, see note in 109 Am. St. Rep. 804.]</p>

<p>1. Intoxicating Liquors — Offenses—Introducing Liquor into State. Under the constitutional amendment prohibiting the introduction of wjiisky into the state for sale, one aiding and assisting the principal in the commission of the offense by driving an automobile hired by the principal, if knowing that he was assisting the principal in bringing the whisky into the state, or if having reason to know and making no investigation or inquiry, would be guilty of an offense; as, though it might be impossible for him to definitely ascertain the purpose for which the principal was bringing liquor into the state, he should at least have made some inquiry into such purpose.</p> <p>2. Intoxicating Liquors — Offenses — Introduction Into State.— Where the state has shown an introduction of intoxicating liquors in violation of the constitutional prohibition amendment, it has made out a primo fade case authorizing a conviction of the person or persons introducing it, and such person, to escape conviction, must successfully and satisfactorily show that the liquor was introduced for a lawful purpose.</p>

<p>1. Appeal and Error — Dismissal—Grounds—Want of Prosecution. Where judgment was rendered July 12th, and appellant gave notice of appeal, and on July 15th filed his costs and swpersedeas bond, but took no further steps to prosecute his appeal, the motion of appellee, filed October 16th, to dismiss it, will be granted.</p> <p>2. Costs — On Appeal — Damages foe Delay. — Where an appeal is taken solely for delay and without any sufficient cause, damages will be awarded to the appellee.</p>

<p>1. Intoxicating Liquors — Offenses—Bringing Into State — “Introduce.” — Intoxicating liquors are introduced into the state, within Constitution, article 23, section 1, providing that intoxicating liquor shall not be introduced into the state under any pretense, when the liquors have been intentionally transported into the state as the result of a transaction set on foot by a single impulse, and operated by an unintermittent force, no matter how long a time it may occupy, nor the distance over which it may be exerted, either within or without the state, so long as the transaction results in bringing the liquor within the territorial jurisdiction of the state.</p> <p>2. Criminal Law — Venue—Place of Offense. — The offense of introducing liquors into the state is not completed till they reach their destination, but the offense is committed in every portion of the state over which they are transported, and if the route is in part in one county and in part in another, the offense is committed in part in each county, and may be prosecuted in either county under Penal Code of 1913, paragraph 812, providing that when a public offense is committed in part in one county and in part in another, or the acts or effects thereof requisite to consummation of the offense occur in two or more counties, the jurisdiction shall be in either county.</p> <p>3. Words and Phrases — “Continuing Offense.” — A continuing offense is a transaction or a series of acts set on foot by a single impulse and operated by an unintermittent force, no matter how long a time it may occupy.</p> <p>4. Intoxicating Liquors — Criminal Prosecutions — Sufficiency of Evidence — Corpus Delicti. — In a prosecution íot introducing liquor into the state, evidence held sufficient to establish the corpus delicti, independent of admissions and statements by accused.</p> <p>5. Criminal Law — Appeal—I'resumptions—Matters not in Record.— Where the record shows that a portion of the evidence is not included, the supreme court will presume that it is sufficient to cure defects in the evidence brought up to establish corpus delicti.</p> <p>6. Intoxicating Liquors — 'Criminal Prosecution — Evidence—Corpus Delicti. — 'The corpus delicti of the offense of introducing liquor into the state may be established by circumstantial evidence.</p> <p><7. Intoxicating Liquors — Prosecutions—Instructions.—In a prosecution for introducing liquor into the state, a charge that under the law, if the evidence warrants it, the jury may find defendant guilty, for any person who introduces into the state any ardent spirits, etc., shall be guilty of a misdemeanor, is not objectionable as requiring the jury to convict even if the liquor were introduced for a lawful purpose, where no issue as to the purpose of introducing the liquor was raised at the trial.</p> <p>8. Criminal Law — Appeal—Harmless Error — Instructions.—In a prosecution for introducing liquor into the state, the defendant could suffer no injury from the failure to instruct as to the defense of lawful purpose of the introduction, when the purpose he was shown to have admitted was unlawful. .</p> <p>[As to the place where crime is deemed to have been committed as venue, see note in 44 Am. St. Rep. 79.]</p>

<p>Gaming — Evidence.—In a prosecution under Penal Code of 1913, section 321, for conducting a gambling device known as “pari mutuel,” conviction set aside.</p> <p>[As to what constitutes buying or selling pools within statute against gaming, see note in Ann. Cas. 1916B, 100.]</p>

<p>1. Divorce — Stipulation as to Property — Validity.—A deeree in a divorce action reciting stipulation of the parties that the divorced wife “shall have the home and furniture therein,” etc., did not compel either party to divest himself or herself of the title to separate property, contrary to the direct prohibition of Civil Code of 1901, paragraph 3116, now Civil Code of 1913, paragraph 3862, although the home was the separate property of the husband, for the decree did not purport to divest the husband of his title, but merely reeited the terms of the stipulation, which, not being in writing or subscribed and delivered by the husband, could not take effect as a conveyance under Civil Code of 1901, paragraph 721.</p> <p>2. Divorce — Decree—Stipulations—Conclusiveness.—Where deeree in divorce suit recited the stipulation of the parties that the divorced wife “shall have the home,” the divorced husband thereby forever relinquished all right to the property described as “the home,” notwithstanding the deeree was broader than the evidence warranted, and he could not question, so far as his rights were affected, a decree in her favor in action against him to quiet title to her in such home, although the children of the union, not being joined, would not be concluded by such decree.</p> <p>[As to power of court to modify decree for alimony based upon agreement of parties, see note in Ann. Cas. 1912C, 446.]</p>

<p>APPEAL from a judgment of the Superior Court of the County of Apache. Carl G. Krook, Judge.</p>

<p>1. Elections — Title to Oppice — Governor.—Under the Constitution and. laws of Arizona, the title to the offiee of Governor is given hy the fact of election by the highest number of legal votes; the declaration of result and issuance of certificate of election being but evidence thereof, whieh may be contradicted.</p> <p>2. Elections — Mandamus—Quo Warranto — Determination op Eight to Oppice. — Under Civil Code of 1913, paragraph 1553, authorizing mandamus to compel the admission of a party to an office to whieh he is entitled and from which he is unlawfully precluded, etc., questions concerning conflicting claims to the offiee, such as who received the highest number of legal votes therefor, eligibility and qualification of candidates, and expiration of term of incumbent, are foreign to the scope of mandamus, and must be determined either in election contest, under Civil Code of 1913, paragraphs 3060-3070’, or by quo warranto, under Civil Code of 1913, paragraphs 1596-1602.</p> <p>3. Mandamus — Scope op Eemedy. — The writ of mandamus issues of right, but not as a matter of course, and is not, except in a limited sense, prerogative in character.</p> <p>4. Mandamus — Scope op Eemedy. — Mandamus does not issue where there is a plain, speedy and adequate remedy in the ordinary course of law, and ought not to issue as a matter appealing to the legal discretion of the court when the applicant does not substantially demonstrate the propriety and justice of his case.</p> <p>5. Mandamus — Scope op Eemedy. — Mandamus is an extraordinary and expeditious legal remedy, which proceeds in every case upon the assumption that the applicant has an. immediate and complete legal right to the thing demanded.</p> <p>4). Mandamus — Temporary Possession of Office — Prima Facie Election. — Under Civil Code of 1913, paragraph 1553, as to mandamus to compel the admission of a party to the use and enjoyment of an office to which he is entitled and from which he is unlawfully precluded, the writ issues to give to a candidate, prima facie entitled to office by canvass and certificate of election, temporary possession of such office as a da facto officer, pending and without awaiting the result of proceedings by quo warranto or election contest; there being no speedy or adequate remedy at law.</p> <p>7. Elections — Constitutional Provision — Duty of Secretary of State. — Under Constitution, article 5, section 13, providing that “the returns of the election for all state officers shall be canvassed, and certificates of election issued by the Secretary of State, in such manner as may be provided by law,” the duty of the secretary to canvass and issue certificates of election cannot be taken away by the legislature, although the legislature might provide for the form and contents of the certificate and the manner of its execution.</p> <p>3. Constitutional Law — Self-executing Provisions. — If a constitutional provision direetly imposes a duty on an officer, no legislation is necessary to require the performance of such duty.</p> <p>9. Elections — Certificate of Election — Effect.—The acts of the Secretary of State, under Constitution, article 5, section 11, in canvassing returns, declaring the result, and delivering a certificate of election to a candidate for Governor, gives such candidate, if not shown to be disqualified, a prima facie right to be admitted temporarily to the office, until reversed or set aside by a court of proper jurisdiction in appropriate proceedings.</p> <p>10. States — Constitutional Officer — Governor. — The qualifications for Governor being specifically detailed in the Constitution, the legislature is powerless to add to or detract from the qualifications prescribed.</p> <p>11. States — State Tax Commission — Constitutional Provisions.— Power of Legislature. — Members of the state tax commission are not constitutional officers, but the commission is a creature of the legislature, which has absolute power over it, and may prescribe what qualifications its members shall possess, when vacancies shall occur, or may abolish it entirely.</p> <p>12. Officers — Tax Commissioner — eligibility to Office. — Civil Code of 1913, paragraph 4822, providing that no tax commissioner shall hold any other office, does not prohibit him from holding any other position of trust or profit during his term of office, but the effect of the provision is that if a member of the tax commission does so, he, by that very act, vacates his office as tax commissioner; Civil Code of 1913, paragraphs 220, 221, as to resignations and requiring acceptance thereof not applying, since the general terms of those statutes are controlled by the particular terms of paragraph 4822.</p> <p>13. Officers — Acceptance of Second Office. — The holding of one office does not render the incumbent ineligible to another; hut the acceptance of a second office, when prohibited, ipso facto absolutely vacates the first office.</p> <p>14. Elections — Certificate of Secretary of State — P!rima Eacie Evidence. — Under Constitution, article 5, section 11, as to the issuing of a certificate of election by the Secretary of State, the canvass and certificate are no evidence of who was in truth elected; hut they are prima facie evidence of the result, and constitute the highest evidence of the prima facie title that the law requires.</p> <p>15. Mandamus' — Compelling Delivery of Office — Officer Holding Over. — The rule as to issuance of mandamus to compel the delivery of official belongings of a public office to a successor holding prima fads title applies to one holding over in a contest between himself and a person declared elected as his successor.</p> <p>16. Mandamus — Right to Emoluments of Office — Obedience tcMandamus to Yield Office. — One holding over and yielding his office in obedience to mandamus to one prima fade entitled thereto, pending outcome of election contest, loses no rights by such course, not even salary and emoluments of the office while out of possession, since the one holding under prima fade title is a mere de facto officer.</p> <p>17. Mandamus — Enforcement Against Governor. — In mandamus proceedings, where a candidate for Governor was held entitled to temporary possession of the ofliee of Governor as de faeto officer pending the outcome of election contest, the writ would not issue instantly against the Governor holding over, since it would he presumed that the latter would yield such temporary possession upon being advised of the decision of the court.</p> <p>[As to whether mandamus may be issued against Governor of states, see notes in 33 Am. Dec. 361; 31 Am. St. Rep. 294.]</p>

<p>1. Criminal Law — Appeal—Prejudicial Error — Delay in Hearing. Where one appealing from a conviction for crime, by his request for more time delayed the hearing of the appeal more than three years, so that the witnesses may have left the jurisdiction and other sources of evidence have disappeared, the judgment will not be reversed exeept for error obviously prejudicial to him.</p> <p>2. Criminal Law — Appeal—Harmless Error — Trial op Challenge to Panel. — Where the trial judge overruled accused’s challenge to the panel without following the procedure prescribed by Criminal Code of 1913, sections 1019-1022, for determining the sufficiency of sueh challenge in law and fact, such error was not prejudicial where the challenge was, in fact, insufficient.</p> <p>3. Jury — Challenge to Panel — Grounds—Irregularity in Drawing. A challenge to the panel on the ground that there had been a material departure from the forms prescribed in respect to the' drawing and returning of the jury, in that there was one drawing made for the year 1913, and that at such drawing a list was returned, and that the order made and the drawing had thereunder in "October, 1913, is entirely void, is insufficient because stating no facts which show that the jury was not drawn and returned in accordance with law.</p> <p>4. Criminal Law — Challenge to P'anel —■ Want of Publication— Estoppel. — Where accused, who had challenged the panel for failure to publish notice of the drawing of the grand jury, remained silent when the county attorney stated in court that the notice had been published, he is estopped from asserting the contrary on appeal.</p> <p>5. Jury — Challenge to Panel — Grounds—Indefiniteness.—A challenge to the panel based on an intentional omission of the sheriff to summon some of the jurors drawn is indefinite, where the challenge showed that there had been a valid and a void drawing, and is insufficient.</p> <p>'6. Jury — Challenge to Panel — Eailure to Summon Jurors. — The intentional omission by the sheriff to serve a summons on jurors regularly drawn is ground for challenge to the panel.</p> <p>7. Jury — Special Venire — Statute.—Under the express provision of Civil Code of 1913, paragraphs 3542, 3543, the court at the trial of-a criminal prosecution can issue an open venire when there are not enough regular jurors in attendance.</p> <p>:8. Jury — Summoning—Disqualification of Sheriff. — The sheriff is not disqualified from summoning the jury to try a person charged with killing one of his deputies.</p> <p>[As to bias or misconduct of officer summoning jury as ground for challenge to panel, see note in Ann. Cas. 1916A, 693.]</p>

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. A. C. Lockwood, Judge.</p>

<p>1. Statutes — Local and Special Acts — Validity—Pay of County Officers. — Under Constitution, article 12, section 4, providing that county supervisors shall fix salaries of county officers for whom no compensation is provided by law, which shall remain in force “until changed by general law,” any law changing the compensation of such officers should be a general and not a local or special law.</p> <p>2. Counties — Functions.—Counties are political subdivisions of the state, created to aid in the administration of state law for the purpose of loeal self-government.</p> <p>3. Statutes — “Local and Special Acts.” — A law which operates alike upon all of any given class is not loeal or special.</p> <p>[As to what are local or private statutes, see notes in 23 Am. Dec. 543; 1 Am. St. Rep. 903.]</p> <p>4. Statutes — “Local and Special Acts” — Validity—Pay of County Officers. — The county salary law of 1912 (Civ. Code 1913, pars. 3226-3241), in view of paragraph 3226 thereof, declaring the population of each of the several counties and paragraph 3227, providing that for the purpose of regulating compensation of officers the counties are classified according to population as declared in the preceding section, and naming as many classes as there are counties, each class containing one county only, is a loeal and special act, .and therefore void.</p> <p>5. Statutes — Local and Special Acts — Validity—P!ay op County Oeficeks. — Such act is further a local and special act, and void because the salary classification is not graduated according to population or other logical scheme, but is unequal.</p>

<p>1. Indictment and Information — Demurrer—Lack of Preliminary Examination. — Failure to make preliminary examination before a •magistrate prior to filing of an information is not ground for demurrer, but is ground for motion to quash the proceedings and abate the action; since the examination need not be alleged on the face of the information, and, unless a defeet appears on the face of a pleading, demurrer thereto does not reach the defect.</p> <p>2. Criminal Law — Preliminary Examination — Violation of Prohibition Amendment. — The offense of selling whisky in violation of the prohibition amendment to Constitution, article 23, is a misdemeanor, and preliminary examination before a magistrate is not essential to a proper commencement of prosecution.</p> <p>3. Principal and Agent — Agreement to Do Illegal Act. — The relation of principal and agent exists by contract, express or implied, and any agreement that authorizes or requires an agent to do an illegal act, or tends to induce the commission thereof, is void.</p> <p>4. Intoxicating Liquors — Guilt of Agent to Buy — Constitution— Statute — “Principal.”—Under Penal Code of 19-13, section 27, •providing that all persons concerned in the commission of a crime, whether felony or misdemeanor, and whether they direetly commit the act constituting the offense, or aid and abet in its commission, are principals, where restaurant patrons gave a waiter a dollar, with the request that he secure whisky for them, and the waiter went to an illegal seller of whisky, who gave him a pint for the dollar, the waiter returning with the bottle to the restaurant patrons, such waiter violated Constitutional Amendment, article 23, the prohibition amendment.</p>

<p>On Rehearing.</p> <p>1. Appeal and Error — Determination on Appeal — Entry op Final Judgment.- — The appellate court can enter a final judgment only upon the theory that the jury in its verdict found all the essential facts upon which to base such judgment.</p> <p>8. Boundaries — Surveys—Apportionment op Discrepancies. — Where excesses occur in the area of lands laid out by public survey, such excesses must be distributed between the several subdivisions in which they occur in proportion to their respective lengths.</p>

John C. Phillips, Judge. STATEMENT OF FACTS BY THE COURT. The appellants ask for a reversal of this case on the ground that the court misdirected the jury as to the law and for misconduct of the jury.

<p>1. Bail — Before Conviction. — Constitution, article 2, section 22, provides that all persons charged with crime shall be bailable, except for capital offenses, when the proof is evident or the presumption great. Penal Code of 1913, section 1188, provides that a defendant charged with an offense punishable with death eannot be admitted to bail, where the proof of crime is evident, or the presumption great. Seetion 1189 provides, if the charge is for “any other offense,” accused may be admitted to bail before conviction as a matter of right. The people of Arizona adopted an initiated measure abolishing capital punishment for murder. Held, there being no longer any offense punishable with death, section 1189 provides in effect that any person charged with crime may be admitted to bail before conviction as a matter of right, for the law-making power can enlarge the constitutional grant, so as to include persons convicted of erime and give to such persons in all cases the right to be admitted to bail on appeal.</p> <p>2. Bail — After Conviction — “Discretion.” — Under Penal Code of 1913, section 1199, providing for bail after conviction in the court’s discretion, except in cases of fine, the discretion to be exercised is sueh as was exercised at common law, with the modifications wrought by constitutional and statutory provisions, controlled by certain well defined and established rules, and guided by the spirit, principles and analogies of the law to be gleaned from the precedents; a sound legal discretion, as distinguished from a wild whimsical discretion, or mere vague power, to be exercised only at the whim and caprice of the judge, because he may have the humor to bestow a favor upon one person as a mark of friendship and withhold it from another as a mark of displeasure.</p> <p>3. Bail — Effect of Granting Certificate of Reasonable Grounds for Appeal. — Under Penal Code of 1913, sections 1160-1162, as to certificate of reasonable grounds for appeal, the granting of sueh certificate does not entitle accused to bail as matter of right.</p> <p>4. Criminal Law — Appeal and Error — Certificate of Reasonable Ground for Appeal. — Under sueh statutes, a certificate of reasonable grounds for appeal should not be granted in misdemeanor eases, it not being contemplated by the law, and, if granted, does not stay the execution of the judgment.</p> <p>5. Bail — Supreme Court — Original Application for Bail. — Original application for bail should not be made in the supreme court; that court being loath to interfere with the discretionary powers in granting or denying bail, since these are functions belonging peculiarly to the trial judge, who has greater familiarity with the controlling facts.</p> <p>6. Bail — Review—Discretion of Trial Court. — In an exceptional case, where the trial judge acts capriciously, or arbitrarily refuses to act, and with no regard for a sound discretion, the supreme court would be bound to interfere in an appropriate proceeding to review the exercise of such discretion.</p>

<p>Original applications for admission to bail.</p>

<p>1. Waters and Watercourses — Diversion — Railroad Bridge — Unusual Flood. — Evidence in action for injury to land by flood waters of a stream diverted by a railroad bridge, held to show that the flood was such as experience indicated must be expected to recur at irregular intervals.</p> <p>2. Waters and Watercourses — Diversion of Flood Waters — Insufficient Railroad Bridge. — Evidence held to authorize a finding that defendant railroad in constructing a bridge over a river, with trestle over lowlands, negligently failed to provide sufficient waterways for passage of usual flood waters, causing the injury to plaintiff’» farm lands by deposits thereon.</p> <p>3. Waters and Watercourses — Diversion of Flood Waters — Amount of Damages. — Evidence in action for injury to farm lands by deposits from flood waters diverted by railroad bridge over river, with insufficient waterways, held sufficient to sustain the verdict as to amount of damages.</p> <p>[As to liability of railroad company for diversion of surface water on to land of another, see note in Ann. Cas. 1914A, 1292.]</p>

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. A. C. Lockwood, Judge.</p>

<p>Criminal Law — Appeal and Error — Failure to Set Out Evidence— Extent of Review. — Where accused submitted cause on judgment-roll forming transcript on appeal with no record of evidence, made no appearance by argument or brief, the judgment will be affirmed, where it does not appear that any substantial right has been denied.</p>

<p>1. Reformation of Instruments — Mutuality of Mistake. — A deed containing a perfectly plain description of a certain 40 acres would not be reformed, where no mistake was made by the scrivener, and the land was that which the purchaser intended to buy, and the mistake was solely that of the vendor as to the proper description.</p> <p>[As to reformation of instruments on the ground of mistake, see notes in 30 Am. St. Rep. 621; 117 Am. St. Rep. 227.]</p> <p>2. Reformation of Instruments — Ratification.—Where at the time of contract and partial cash payment deed of the property was placed in escrow, the later acceptance by vendor of the agreed purchase price and her permitting the escrow-keeper to deliver the deed to the purchaser after she discovered a misdescription of the land in contract and deed operated as a surrender of her claim of mistake and a ratification of the written instrument as speaking the truth.</p> <p>3. Equity — Disturbance of Executed Contract. — Where parties, with full knowledge of the terms and conditions of a contract, dealing at arm’s-length, fully perform it, equity will not interfere or lend its aid to disturb the situation.</p>

<p>1. Appeal and Error — Objections Below — Instructions—Necessity op Bequest. — An instruction on counterclaiming defendant’s measure of damages was not reviewable, where plaintiff neglected at the proper time to request a proper instruction, setting forth the true rule of damages as he understood it.</p> <p>2. Praud — Damages—Difference Between Actual and Represented Value. — Where plaintiff pleaded in his reply to defendant’s counterclaim for fraud in sale of land that the land was of the value paid by defendant, the measure of defendant’s damages was the difference between the purchase price and the actual value as found; for, under such pleading, the purchase price was the represented value.</p> <p>[As to measure of damages for misrepresentation in the sale of land, see note in 123 Am. St. Rep. 776.]</p> <p>3. Appeal and Error — Harmless Error — Instruction on Measure op-Damages. — The giving of an instruction on measure of appellee’s damages was not injurious, where the jury did not follow it, but applied a rule more favorable to appellant.</p> <p>4. Appeal and Error — Reversal—Technical Error. — An instruction. objected to as susceptible of being understood to require a finding for counterclaiming appellee in excess of the amount admittedly due appellant, in the event appellee suffered any damages whatever, was not reversible error, under the constitutional prohibition of reversal for technical errors, where the jury specially found the amount, of appellee’s damages, from which it deducted his admitted debt to-plaintiff and returned verdict for the balance.</p>

<p>1. Mortgages — Vacation — -Discretion.—Where trial of a mortgage foreclosure suit had been repeatedly set and reset for a period of six months to suit the convenience of defendant, another mortgagee, and trial was had on the last day of the period of redemption from such other mortgagee’s foreclosure, refusal of the trial court to vacate the judgment because of defendant mortgagee’s alleged unavoidable absence from the trial was not reversible as a clear abuse of discretion.</p> <p>2. Judgment — Amendment — Notice. — A judgment should not be amended without notice to parties affected, either in the form of an order to show cause when done of the court’s own motion, or, when asked for by party, upon notice with a proper showing.</p> <p>3. Appeal and Error — Presumption—Record.—On appeal from a judgment claimed to have been modified without notice, such lack of notice will not be presumed from mere silence of the record on that point; for the presumption is that the trial court proceeded according to law.</p> <p>4. Appeal and Error — Objection Below — Lack op Notice. — The objection that a judgment was modified without notice to appellant cannot be raised on appeal from the modified judgment only, where the reeord does not affirmatively show such laek of notice; but in such case appellant should move to set the amended judgment aside for lack of notice, show the lack of notice by affidavits, and appeal from an order denying his application.</p> <p>•5. Appeal and Error — Reversal..—The constitutional prohibition of reversal for technical errors prevents reversing an amended judgment because of lack of notice of sueh amendment to a party affected, where the' amendment was made according to the truth and justice of the case, and did not prejudice appellant.</p> <p>3. Mortgages — Foreclosure by Action — Decree—Validity—Definiteness of Description. — A deeree of foreclosure of “all the right, title,” ete., of a named person in the described premises is not a nullity for uncertainty or indefiniteness of the description of the interest foreclosed, although sueh indefiniteness may be important to the purchaser at the sale.</p> <p>[As to foreclosure sale as passing title to all parties, see note in Ann. Cas. 1914D, 283.]</p>

<p>1. Schools and School Districts — Bond Election — Validity.—While Civil Code of 1913, paragraphs 2736, 2740, regulating elections for hond issues, must he substantially followed, mere irregularities in conducting the election or in the notice, returns or canvass of the votes will not invalidate an election.</p> <p>2. Schools and School Districts — Contesting Bond Election— Necessary Parties Defendant — School Bond Election. — In an action contesting the validity of a sehool bond election held by a sehool district, the sehool district, being the only party vitally interested, is a necessary party to the action.</p> <p>3. Schools and School Districts — Board of Supervisors — Duties.— Under Civil Code of 1913, paragraph 2740, providing that the county board of supervisors shall issue school bonds, if it appears that such issue was approved at an election, the supervisors have only ministerial duties to perform, and are not required to defend suits testing the legality of sehool bond elections.</p> <p>4. Parties Necessary. — How Determined. — Ordinarily, parties interested in the decision of the cause must be before the court on one side or the other.</p> <p>[As to equitable doctrine of virtual representation, see note in Ann. Cas. 1913C, 654.]</p> <p>5. Parties — Defects—Waiver.—A defect of parties may be waived by proceeding to trial without objection unless the omitted party is indispensable to a conclusive determination of the controversy.</p> <p>6. Schools and School Districts — Collateral Attack — School Bond Election. — The validity of a school bond election held by a sehool district cannot be collaterally attacked in an action to enjoin the county board of supervisors from issuing bonds pursuant to such election.</p>

<p>1. Witnesses — Privileged Communications — Extent of Privilege— Codefendants. — Even if evidence brought out on cross-examination of a defendant under Civil Code of 1913, paragraph 1680, as to examination of adverse party was concerning communications privileged as to him, sueh privilege could not extend to a codefendant, and sueh testimony would be permitted to stand as against sueh codefendant.</p> <p>2. Witnesses — Examination of Adverse Party — Statute.—Civil Code of 1913, paragraph 1680, providing for cross-examination of an adverse party, is a modification of the common-law rules of evidence.</p> <p>3. Witnesses — Examination of Adverse Party. — -An adverse interest is the test of the right to cross-examine a party to a suit under Civil Code of 1913, paragraph 1680, as to cross-examination of adverse party.</p> <p>4. Parties — Who may be Joined — Tort Action. — One claiming damages in tort may join all or any number of the tort-feasors in the action as defendants.</p> <p>5. Dismissal and Nonsuit — Voluntary as to One or More Codefendants — Tort Actions. — Actions of tort being in their nature joint and several, plaintiff therein may, at any stage, enter a nolle prosequi, dismiss, or discontinue as to part of the defendants without discharging the rest.</p> <p>6. Libel and Slander — Evidence—Sufficiency.—Evidence held not to show defendant’s participation in either the composition or publication of an alleged libelous article.</p> <p>7. Evidence — Examination of Adverse Party — Evasive Answers.— Where plaintiff endeavored to make out his ease from cross-examination of a defendant under Civil Code of 1913, paragraph 1680, such defendant’s conduct upon the witness-stand and his studied evasion in answering questions, however objectionable, and although it might well have aroused the suspicion of the jury that he was not openly and frankly telling the truth, could not be substituted for positive evidence of the faets sought to be proved.</p> <p>8. Signatures — By Hand of Another. — The fact that one’s name is attached to a paper does not make it his act and deed, unless he put it there himself, or caused or permitted it to be put there by another.</p> <p>9. Evidence — Documentary Evidence — Production — Preliminary Evidence — Proof of Execution of Original. — That plaintiff had made written demand from defendants to produce the original of an alleged libelous article in court at the trial, as provided in Civil Code of 1913, paragraph 1760, did not relieve him from the obligation of proving that there was an original.</p> <p>10. Evidence — Documentary Evidence — Production—Compelling Production — Effect of Failure to Produce. — In a libel suit, it not having been shown that defendant composed the alleged libelous article or signed or published it, or that he ever was seen in possession of it, no favorable inferences should be indulged from the failure on his part to produce upon notice.</p> <p>11. Libel and SlandeRt — Publication of Libel. — Damages to character being the basis of civil liability for libel, plaintiff must show that the alleged libelous article has been seen and read by some other person than himself; Penal Code of 1913, section 225, providing that in criminal libel it is enough that accused knowingly parted with the immediate custody of the libel under eireumstanees which might expose it to be seen or read by any other person than himself,, not applying to civil liability.</p> <p>[As to liability for procuring publication of libel in newspaper,, see note in Ann. Cas. 1913D, 13.]</p>

<p>1. Constitutional Law — States—Legislative Powers — Appointment of Officers. — Acts of 1915, chapter 62, section 1, establishes a state library to be under the control of a board of eurators to be appointed by the Governor, ete. Section 2 gives such boards full control and management of the library, and authority to appoint a law and legislative reference librarian, who shall hold office at the pleasure of the board, provided, however, that the board of curators are not empowered to appoint such librarian during ineumbeney of office of the librarian provided in section S. Section 3 appoints the defendant the law and legislative reference librarian, and provides that he shall serve until his successor is appointed, unless otherwise provided by law. Sections 4-6 and 8 reeite the duties of the librarian and the assistance he shall give to heads of departments and to the legislature in preparing laws, etc. Constitution, article 5, section 8, provides that if a vacancy in any office oceurs from any cause, and no mode of filing it is pointed out either by the Constitution or by statute, the Governor of the state is empowered to fill the vacancy by appointment. Article 4, section 8, grants the legislative department the power to appoint its own officers. Constitution, article 6, sections 14, 17, grants to the Supreme Court authority to appoint a reporter of decisions and clerk of court. Artiele 11, section 3, provides for the appointment of three members of the state board of education. Section 5 provides for the appointment of regents of the University and governing boards of other state institutions. Article 22, section 18, provides for the appointment of a state examiner. Article 7, section 9, provides for an advisory vote of the people for United States senator. Held, that as the power of appointment is primarily in the people, and as section 8 inferentially imposes the duty upon the legislature m all cases where the Constitution does not provide for the filling of vacancies by provisions for filling them, the act creating the office of law and legislative reference librarian, and appointing the defendant thereto, does not violate any provision of the Constitution of the state either direetly or by implication.</p> <p>2. States — Legislative Powers — Appointment op Officers. — Acte of 1915, chapter 62, creating the offiee of law aud legislative reference librarian, and appointing defendant thereto, if not a proper exercise of the power of the legislature to appoint officers in the absence of a provision in the Constitution for their appointment, was an exercise of its power to appoint its own officers, which, since the office is peculiarly identified or associated with the appointing power, as where it has to do with the functions and duties of the appointing power, whether it be judicial, legislative or executive, the appointment properly belongs to that department.</p> <p>3. States — Officers — Appointment — Constitutional provisions.— Constitution, article 4, section 1, subdivision 3, provides that laws other than emergency measures do not become operative for ninety days after close of the session of the legislature enacting the measure. Constitution, article 5, section 7, provides that if any bill be not returned within 5 days after it shall have been presented to the Governor, such bill shall beeome a law in a like manner as if signed by the Governor, unless the legislature by final adjournment prevents its return, in which case it shall be filed with his objections in the office of the Secretary of the State within ten days after such adjournment, or become the law as provided in this Constitution. Acts of 1915, chapter 62, was not approved by the Governor, and not vetoed, and the Governor did not file any objections to the same within ten days after the final adjournment of the session on March 11, 1915. Defendant’s official bond was executed and presented to the board of curators on April 2, 1915, and approved on the same day, and on the same day his bond, together with his oath of office, was filed with the Secretary of State. Held, that as chapter 62 was a law on Mareh 24, 1915, although it did not •beeome operative until ninety days thereafter, the power of the legislature to make the appointment being determined, the exercise of such power in advance of the law becoming operative was valid.</p> <p>4. States — Officers—Qualification.—As Laws of 1915, chapter 62, although a law on Mareh 24, 1915, did not become operative until ninety days thereafter, the board of curators appointed under the provisions of Civil Code of 1913, paragraph 4554, had not been superseded or displaced on April 2d, and had authority on that date to approve defendant’s bond as legislative law and reference librarian under chapter 62.</p> <p>[As to whether power to appoint officers is essentially an executive function, see note in 13 Am. St. Rep. 125.]</p>